Mr X and Department of Communications, Climate Action and Environment

Whether the Department was justified in refusing access to records relating to the applicant and his companies under section 32(1)(a)(i) of the FOI Act (law enforcement and public safety)

30 April 2020

Background

In an FOI request to the Department dated 7 October 2019, the applicant sought access to records relating to himself and three of his companies. In a decision dated 6 November 2019, the Department released 33 records and withheld 11 others under section 32(1)(a)(i) of the FOI Act (law enforcement and public safety). The applicant sought an internal review on 12 November 2019. On 3 December 2019, the Department affirmed its decision on the request. On 14 December 2019, the applicant applied to this Office for a review of the Department’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the applicant and a County Council (the Council). I have also examined the records at issue and I have had regard to the provisions of the FOI Act.

Scope of the Review

The scope of the review is confined to whether the Department’s refusal to release certain records covered by on the applicant’s request was justified under the FOI Act i.e. records 1-5, 8-11, 18 and 24.

Findings

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). While the Department has released parts of the report, this Office takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs.

The FOI Act provides that when making my decision, I cannot take into account any reasons the applicant may have for seeking access to the records except insofar as this might be relevant to consideration of the public interest in certain exemptions.

Section 32(1)(a)(i) provides for the refusal of an FOI request if, in the opinion of the head of the FOI body, access to the record concerned could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid.

It is well settled that mere assertions by an FOI body as to harms that might result from disclosure of a record are not sufficient for the Commissioner to find that a particular exemption applies. Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the matters specified in the relevant sub-paragraph that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. It should explain why releasing the particular record could reasonably be expected to cause the harm which it has identified. It should consider whether the matter specified could reasonably be expected to be prejudiced (that is to say, injured or potentially injured) or could reasonably be expected to be impaired (that is to say, damaged or weakened). In interpreting the words “could reasonably be expected to”, the Commissioner’s view is that the test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable.

I can give only a very limited description of the withheld records and the arguments in the Department’s submission to ensure that I do not disclose exempt information. I should say that I have also had regard to the details in a particular record released to the applicant by the Department, comprising a copy of a record that he had submitted to it. The Department says that the details in this record were obtained by the applicant from another source.

The Department says that the enforcement of waste legislation is a statutory matter for either the local authorities or the Environmental Protection Agency. Local authorities have specific powers under section 55 of the Waste Management Act 1996 to require measures to be taken to prevent or limit environmental pollution caused or likely to be caused by holding, recovery or disposal of waste and to mitigate or remedy the effects on the environment of such activity. Further to section 56, should a person fail to comply with a direction given by a local authority, the local authority may take such steps as it considers necessary to prevent or limit environmental pollution caused by the waste and may recover any expense incurred from the said person in the Courts. The Department has no role in such proceedings. Its role is to provide a comprehensive legislative and waste policy framework through which the enforcement authorities operate. The Department says that it holds records relating to the applicant because it had previously sought details from all local authorities regarding certain waste issues in order to develop new “structures” in relation to these matters.

The Department goes on to explain why it believes that the release of two particular types of information in the records could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences by the Council, that body’s apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of those matters. I am not in a position to set out the Department’s explanation here as to do so would of itself be likely to cause the same harm that it is seeking to prevent. However, I am satisfied that there is a sufficient link between the release of some information in the records and a reasonable expectation of the harms envisaged by section 32. Based on the Department’s explanation and my examination of the records, I am satisfied that the details set out below are exempt under section 32(1)(a)(i) of the FOI Act:

Record 5 (first paragraph of column headed “update”); Record 9 (final paragraph of email of 10 August 2018 on page 1, from the words “Given that …”); Record 10 in full and Record 11 in full. It could be argued that the remaining parts of Records 10 and 11 (which also include copies of the email of 10 August 2018) would not, if released, be expected to cause the harms envisaged. However, given the provisions of section 18 explained above, I have decided that it would not be appropriate to extract those parts from the records as a whole.

Section 32(1) is subject to section 32(3) which provides that consideration must be given to the possibility that the public interest would be better served by the release of the information rather than by it being withheld, in the event that one of three conditions is fulfilled. I am satisfied that none of those conditions is fulfilled in this case. I find, therefore, that the Department was justified in withholding the above details under section 32(1)(a)(i).

The remainder of the records include photographs and factual information. This Office’s Investigator asked the Department to explain why, in particular, it believes that such details are exempt under section 32(1)(a)(i). The Department says that it understands the Council has initiated legal proceedings against the applicant in relation to particular waste matters. It says that the photographs and factual information that were provided to it by the Council would be likely to form part of the proceedings concerned and that their disclosure “could reasonably be expected to prejudice or impair any court proceedings initiated by the local authority.” The Department also says that, with hindsight, it believes that it should have released the first two pages of record 18.

The Department did not cite any provision of the FOI Act in this regard but its comments appear to loosely reflect the wording of section 32(1)(a)(iv) of the FOI Act rather than section 32(1)(a)(i). Section 32(1)(a)(iv) provides for the refusal of an FOI request if, in the opinion of the head of the FOI body, access to the record concerned could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.

I acknowledge that there is potentially a degree of overlap between the provisions of section 32(1)(a)(i) and section 32(1)(a)(iv) in relation to prosecutions or proceedings. The former Commissioner, the late Mr. Kevin Murphy, found that there will be occasions when, given the circumstances of the case, release of relevant records during an investigation of offences or before a prosecution had concluded could prejudice or impair the investigation and, by extension, the prosecution of offenders. For example, in the case of Mr and Mrs ABJ and the Office of the Revenue Commissioners (decision No. 98102 on www.oic.ie), the former Commissioner said that "the imposition of a requirement on the Revenue to disclose its proposed conduct of a case in advance without a corresponding requirement in the case of the appellant would, in many cases, impair the fairness of the proceedings", the proceedings in question relating to an appeal before the Revenue Appeal Commissioners. He has also found, in the case of Mr ABM and Others and the Office of the Revenue Commissioners (Case No. 99017) that "based on the lack of reciprocity, the potential for making a possible detrimental inroad into the Revenue's ability to prepare confidentially for the conduct of proceedings in the case ..... I am satisfied that it could reasonably be expected that release in this case could prejudice or impair the fairness of any proceedings before the Circuit Court". He also found, however, that a lack of reciprocity, of itself, does not provide sufficient basis on which to claim exemption pursuant to the provisions of section 23(1)(a)(iv) (the equivalent to section 32(1)(a)(iv) as contained in the FOI Act 1997, as amended by the FOI Act 2003).

Returning to the case at hand, I am not satisfied that the Department’s argument is sufficient to enable me to conclude that the terms of either section 32(1)(a)(i) or (iv) are met in relation to the remaining records. I also note that it is not a party to the proceedings taken by the Council. In the circumstances, the Investigator invited the Council, on 24 February 2020, to comment on the Department’s position.

The Council responded on 5 March 2020 to say that it chose not to contact the Department to ascertain details of the request and the records. It says that it felt this could not have been done within the specified timeframe and still allow a reasonable period of time for it to review the records and formulate a reasoned response. However, it says that, in general terms, the bar is very high to obtain successful legal prosecutions under waste management legislation in the District Courts. It says that it also withholds documents requested under FOI if it considers that their release could undermine an active prosecution that may be before the Courts. It says that the Department’s decision to withhold records that relate to an ongoing legal case appears to be sensible and reasoned.

I am satisfied that this Office gave the Council a reasonable opportunity to provide comments on the records under review that may be relevant to the litigation it had initiated. I have noted the Council’s general comments in support of the Department’s decision as set out above. However, having examined the remaining records and parts of records, I do not consider that in the circumstances I have any basis to find them exempt. They do not contain any contain legal or other strategy, neither do they contain details of how the Council proposes to conduct its case. While I accept that disclosure of the details might allow the applicant to be aware of the evidence (such as photos) which the Council might use in any proceedings, this does not of itself mean that such disclosure could reasonably be expected to prejudice or impair the fairness of the proceedings. Neither have I any basis on which to find that making the applicant aware of the remaining details could give rise to any of the harms identified in section 32(1)(a)(i). I find that the remaining records are not exempt under sections 32(1)(a)(i) or 32(1)(a)(iv) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I affirm its refusal to release certain details, as specified above, under section 32(1)(a)(i) of the FOI Act. I annul its refusal to release the remaining records and direct that these be released (i.e. Records 1-4, 5 (in part with the redaction identified above), 8, 9 (in part with the redaction identified above), 18 and 24).

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.